A burger frenzy protects a brand
Intellectual Property: 27 June 2025
Author: Leisa Bayston - Our People
In-N-Out Burger is a hugely popular American fast-food chain without permanent locations in Australia. However, they have held several successful one-day pop-up events in Sydney, Melbourne, Brisbane, and Canberra. If asked, people tend to assume they are ‘testing the waters in Australia’ for marketing and brand awareness or maybe considering a permanent store.
Call me a cynic but in this world where intangible assets are often the most valuable, I see these pop ups as less about burgers and buzz and more about cold hard brand protection.
Let me explain; a quick search of the IP Australia trademarks register shows In-N-Out Burger have 11 current registered trademarks in Australia which they doggedly defend. They sued a Melbourne based burger chain Down-N-Out and another burger establishment In-N-Out Aussie Burger. In both cases they were successful, and relied not just on trademark infringement but Australian Consumer Law (false and misleading conduct) and passing off.
So, how does this relate to the pop-ups? Once a trademark is registered in Australia it must be genuinely used or another party can apply for it to be cancelled. The use must be genuine and in the normal course of trade. So In-N-Out Burger have had some good advice that they can satisfy this by holding the occasional pop up event, even without a store “down-under”. They literally pop up occasionally and sell a few burgers to a line of Aussies desperate for a bite of a proper American burger.
It goes to show what I often tell clients – a registered trademark is the strongest base you can have underpinning your brand. There are other rights at law to protect you but a registered trademark is always the best starting point.
However, you can’t register and forget – as your business and brand moves your trademarks should be reviewed to see if additional applications for marks or classes should be made. You need to use your mark and you need to keep an eye on your competitors and applications that come through IP Australia which you may wish to oppose.
Be like In-N-Out Burger and take your brand seriously – get in touch and we can discuss how Aitken Partners can help you protect your brand and other valuable intangible assets.
To read more on intellectual property, view our articles below:
High Court says Wine and Beer are the Same Thing (well, almost . . .): https://www.aitken.com.au/news...
IP Update: International trade marks during the COVID-19 Crisis: https://www.aitken.com.au/news...